The Ombudsman's final decision:
Summary: there was fault in the way the Council assessed Ms X’s Housing Register application. As a result, the Council told Ms X she was shortlisted for a property because it made a mistake about her priority date. She suffered disappointment and distress when the Council then bypassed her bid for this property. The Council accepts there was fault and has offered a suitable remedy.
- Ms X complains that the Council bypassed her bid when she was ranked first for an offer of a social housing property in November 2018.
- Ms X complains that the Council has now adjusted her priority date from August 2004 to September 2016. This means she has lost the priority based on her waiting time.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot investigate late complaints unless we decide there are good reasons. A complaint is late when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have spoken to Ms X’s daughter and considered all the information she sent me. I considered the Council’s comments on the complaint and documents from its housing records.
- I gave the Council and the opportunity to comment on my draft decision.
What I found
The relevant law
- A person must be eligible for assistance to be accepted on a Housing Register. Eligibility is about the person’s immigration status. Regulations set out the rules determining eligibility for nationals of European Economic Area (EEA) countries. In broad terms, an EEA national must be working, or a former worker, or a student who satisfies certain conditions to be eligible for housing assistance.
- Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority and eligibility.
The Council’s Housing Register
- The Council adopted a new housing allocations policy in 2012. It also introduced a new online Housing Register. All existing applicants on the Register had to complete a new online application to remain on the register.
- Ms X is an EEA national who has lived in the UK for many years. She is employed and lives with her two children who are now adults. She previously lived in private rented accommodation in the Council’s area until they were made homeless in 2016. They are now in temporary accommodation which the Council arranged when they became homeless.
- Ms X first applied to join the Housing Register in August 2004. At that time, the Council did not carry out checks to verify whether applicants who were EEA nationals were eligible for housing assistance. The Council accepted the application.
- In October 2012 the Council introduced a new housing allocations policy. Existing applicants on the Housing Register were accepted without any further checks on their eligibility then.
- Applicants on the Housing Register must renew their registration periodically. According to the Council’s records, it posted a letter to Ms X on 1 July 2013 asking her to create an online account to renew her registration by 29 July 2013. The Council says the letter was automatically generated so there is no copy in the case records. This letter appears in a list of correspondence issued in the Council’s case records. Ms X says she did not receive the letter so she did not realise she had to renew her registration. She says she would certainly have done so if she had known.
- As Ms X did not renew her registration online before the 29 July deadline, the Council closed her application on 6 September 2013.
- In November 2015 Ms X contacted the Council to ask why it had suspended her account to bid for properties through the choice-based lettings scheme. An officer in the Lettings Agency sent her an email to say her application had been closed in November 2013 (not September 2013). She advised Ms X to make a new application online and sent her instructions about the process.
- Ms X made another enquiry about her application and was given similar advice in February 2016. The officer told Ms X she did not have an active Housing Register application and needed to make a new application.
- In early April 2016 Ms X sent an email to the Housing Register team. She said she had received a letter in 2013 saying she was adequately housed and her account had been closed. She said she could not bid for properties. She says she did not receive a letter reminding her to renew her Housing Register application and wanted the Council to reinstate it.
- In September 2016 an officer in the Lettings Agency replied to Ms X’s enquiry about her Housing Register application. She noted Ms X had started a new online application on 15 August 2016 but had not completed it. She advised Ms X to complete the process.
- Ms X made a new approach to the Council for homelessness assistance in September 2016 when she was being evicted from private rented accommodation. The Council says Ms X should have been told then to complete a new online Housing Register form. That did not happen. Instead, an officer in the Housing Needs team re-opened the original Housing Register form from 2004 and reinstated the 2004 priority date.
- Ms X completed a new Housing Register form online on 15 September 2017. She and her family were in temporary accommodation then.
- In January 2018 the Council confirmed it had completed a “pre-assessment” of her new application and awarded “priority home seeker” status. It said she also had additional priority because she was employed.
- In November 2018 Ms X was shortlisted for an offer of a property for which she had made a bid for on the choice-based lettings scheme. Ms X’s position on the shortlist had been based on her original application date in August 2004.
- An officer in the Lettings Agency asked Ms X to submit evidence of her employment by 12 November. She also asked Ms X to provide evidence that she was eligible as an EEA national for an allocation of social housing. She asked Ms X to provide evidence that she had been exercising her treaty rights in the UK since August 2004 (the date of the original Housing Register application). Ms X sent some documents to the officer, including evidence that she had been employed since May 2014.
- On 13 November 2018 the officer wrote to Ms X to explain she had been bypassed for the offer because she had not provided satisfactory evidence that she had been exercising her treaty rights in the UK since August 2004. Her application would be suspended until she provided satisfactory evidence. The effective date of her application would then be reconsidered.
- Ms X complained to the Council. She also asked for a review of the decision. She said she had been waiting 14 years for an offer of accommodation. She disagreed with the Council’s view that she had not been exercising treaty rights in the UK since 2004. She also said that, regardless of her eligibility, the Council had accepted her application to join the Housing Register in 2004 so it should not penalise her if it had made a mistake.
- The Council considered Ms X’s complaint and the review request. It upheld the decision to withdraw the November 2018 offer. The Council said it made a mistake when it reopened the 2004 Housing Register application. It apologised for this error. It refused to reinstate the 2004 priority date and said the correct date was September 2016 when she approached the Council for homelessness assistance. Ms X then complained to the Ombudsman.
- In response to our enquiries, the Council said:
- It closed Ms X’s 2004 application in September 2013 because she did not complete a new online application by the 29 July 2013 deadline;
- It had sent emails to Ms X in November 2015 and February 2016 confirming it had closed the 2004 application;
- In September 2016 an officer reopened Ms X’s 2004 application by mistake. That reinstated the original August 2004 priority date. The officer should have advised Ms X to complete a new online Housing Register application;
- Its response to her complaint and review request may have caused further confusion. It told her it had closed the 2004 application because Ms X was not exercising her treaty rights in the UK as an EU national. In fact, the real reason for closing the 2004 application was Ms X’s failure to renew the registration online by July 2013.
- At the final stage of its complaints procedure, it apologised to Ms X for its error and offered to pay her £200 to recognise her distress and disappointment.
- This investigation is about the Council’s decision to withdraw the offer of a property in November 2018. We are not investigating the Council’s decision to close the original Housing Register application in September 2013. The Council told Ms X in 2015 and 2016 it had closed this application. She could have made a complaint to the Council and the Ombudsman in 2015 or 2016 when she first became aware of that decision. It is too late for us to investigate now what happened in 2013 as the Council informed Ms X in 2015 that her application had been closed.
- An officer made an error and reopened the 2004 Housing Register application in September 2016. The officer should have advised Ms X to make a new online Housing Register application instead. This error did not come to light until November 2018 when Ms X was shortlisted for a property. As the Council used the original 2004 registration date by mistake, Ms X was ranked in a very high position on the shortlist when she made the bid in November 2018. If the Council had used the correct date, that would not have happened.
- The Council told Ms X it withdrew the November 2018 offer because it was not satisfied she had continuously met the eligibility criteria as an EEA national since she joined the Housing Register in 2004. Ms X says she was eligible for assistance and was exercising her treaty rights in the UK before she started work in 2014. However, this dispute is not the crucial issue in this case. Ms X would not have been ranked in such a high position in November 2018 if the Council had not used the 2004 registration date. If it had used the correct September 2016 date, she would not have had sufficient priority to be at the top of the shortlist.
- The Council failed to give Ms X the correct reasons for bypassing her bid in its initial reply to her complaint. However this fault did not result in Ms X missing out on an offer of a property to which she was entitled. If nothing had gone wrong, the Council would not have used the 2004 registration date and Ms X would not have been placed at the top of the shortlist. So she would not have been considered for this property.
- Ms X’s injustice is therefore limited to the distress and disappointment she felt because the Council raised her expectations and then did not proceed with the offer. The Council’s offer of an apology and £200 is in line with our published guidance on remedies. Ms X should not benefit from the Council’s mistake in using the 2004 priority date because this would cause detriment to other applicants on the Housing Register who had higher priority.
- For these reasons, the Council’s offer of an apology and £200 to recognise Ms X’s distress is a satisfactory remedy and I have not made any other recommendations.
- I have completed the investigation and found the Council’s fault caused Ms X some avoidable distress. The Council has already offered a satisfactory remedy so there is no reason to continue with the investigation.
Investigator's decision on behalf of the Ombudsman